EXAMINING THE ALLEGATIONS OF MISCONDUCT

AGAINST IRS COMMISSIONER JOHN KOSKINEN

(PART II)

HEARING
BEFORE THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION

JUNE 22, 2016

Serial No. 11474

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COMMITTEE ON THE JUDICIARY

BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, JR.,
JOHN CONYERS, JR., Michigan
JERROLD NADLER, New York
Wisconsin
ZOE LOFGREN, California
LAMAR S. SMITH, Texas
SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio
STEVE COHEN, Tennessee
DARRELL E. ISSA, California
HENRY C. HANK JOHNSON, JR.,
J. RANDY FORBES, Virginia
Georgia
STEVE KING, Iowa
PEDRO R. PIERLUISI, Puerto Rico
TRENT FRANKS, Arizona
JUDY CHU, California
LOUIE GOHMERT, Texas
TED DEUTCH, Florida
JIM JORDAN, Ohio
LUIS V. GUTIERREZ, Illinois
TED POE, Texas
KAREN BASS, California
JASON CHAFFETZ, Utah
CEDRIC RICHMOND, Louisiana
TOM MARINO, Pennsylvania
SUZAN DelBENE, Washington
TREY GOWDY, South Carolina
L LABRADOR, Idaho
HAKEEM JEFFRIES, New York
RAU
DAVID N. CICILLINE, Rhode Island
BLAKE FARENTHOLD, Texas
SCOTT PETERS, California
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
SHELLEY HUSBAND, Chief of Staff & General Counsel
PERRY APELBAUM, Minority Staff Director & Chief Counsel

(II)

CONTENTS
JUNE 22, 2016
Page

OPENING STATEMENTS
The
of
The
of

Honorable Bob Goodlatte, a Representative in Congress from the State

Virginia, and Chairman, Committee on the Judiciary .................................
Honorable Jerrold Nadler, a Representative in Congress from the State
New York, and Member, Committee on the Judiciary .................................

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WITNESSES
Jonathan Turley, Shapiro Professor of Public Interest Law, The George Washington University
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Andrew C. McCarthy, former Assistant U.S. Attorney for the Southern District of New York
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Michael J. Gerhardt, Samuel Ashe Distinguished Professor in Constitutional
Law & Director, Program in Law and Government, UNC School of Law
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Todd Garvey, Legislative Attorney, American Law Division, Library of Congress
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................

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LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Jason Chaffetz, a Representative in
Congress from the State of Utah, and Member Committee on the Judiciary .
Material submitted by the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Committee on the
Judiciary ...............................................................................................................

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EXAMINING THE ALLEGATIONS OF MISCONDUCT AGAINST IRS COMMISSIONER JOHN

KOSKINEN (PART II)
WEDNESDAY, JUNE 22, 2016

HOUSE OF REPRESENTATIVES
COMMITTEE ON THE JUDICIARY
Washington, DC.
The Committee met, pursuant to call, at 10 a.m., in room 2141,
Rayburn House Office Building, the Honorable Bob Goodlatte,
(Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Chabot, King, Franks,
Gohmert, Jordan, Chaffetz, Gowdy, Collins, DeSantis, Nadler,
Lofgren, Johnson, and Jeffries.
Staff Present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Zachary Somers, Parliamentarian & General Counsel; Paul
Taylor, Chief Counsel, Subcommittee on the Constitution and Civil
Justice; (Minority) Aaron Hiller, Chief Oversight Counsel; Susan
Jensen, Senior Counsel; and Veronica Eligan, Professional Staff
Member.
Mr. GOODLATTE. Good morning. The Judiciary Committee will
come to order, and without objection, the Chair is authorized to declare recesses of the Committee at any time. We welcome everyone
to this mornings hearing on examining the Allegations of Misconduct against IRS Commissioner John Koskinen (Part II). And I
will begin by recognizing myself for an opening statement.
The Constitution sets forth a system of checks and balances,
which grants each branch of government tools to ensure that no
one branch of government attains too much power. The legislative
branchs tools include the power to write the laws, the power of the
purse, the impeachment power, and the power to censure, among
others. These tools empower Congress to exert oversight over the
executive and judicial branches, including rooting out corruption,
fraud, and abuse by government officials, and taking further disciplinary action on behalf of the American people when warranted.
The duty to serve as a check on the other branches, including
against corruption and abuse, is a solemn one, and Congress does
not take, and must not take this responsibility lightly. That is why
this Committee has scheduled this hearing today.
In 2013, the American people first learned that their own government had been singling out conservative groups for heightened re(1)

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view by the Internal Revenue Service as they applied for tax-exempt status. This IRS targeting scandal was nothing short of
shocking. It was a political plan to silence the voices of groups representing millions of Americans.
Conservative groups across the Nation were impacted by this targeting, resulting in lengthy paperwork requirements, overly burdensome information requests, and long unwarranted delays in
their applications. In the wake of this scandal, then-IRS official
Lois Lerner stepped down from her position, but questions remain
about the scope of the abuses by the IRS.
The allegations of misconduct against Koskinen are serious, and
include the following: On his watch, volumes of information crucial
to the investigation into the IRS targeting scandal were destroyed.
Before the tapes were destroyed, congressional demands, including
subpoenas for information about the IRS targeting scandal, went
unanswered.
Koskinen provided misleading testimony before the House Oversight and Government Reform Committee concerning the IRSs efforts to provide information to Congress. These are very serious allegations of misconduct, and this Committee has taken these allegations seriously.
Over the past several months, this Committee has meticulously
pored through thousands of pages of information produced by the
investigation into this matter. On May 24, this Committee held a
hearing, at which the Oversight and Government Reform Committee formally presented its findings and evidence to the Members
of this Committee.
And today, this Committee holds a second hearing to allow outside experts to assess and comment on the evidence presented to
the Committee at its May 24, 2016 hearing, and the many options
for a congressional response. I look forward to hearing from all of
our witnesses today.
It is now my pleasure to recognize the gentleman from New
York, Mr. Nadler, who will offer an opening statement in lieu of
the gentleman from Michigan, Mr. Conyers, who is not able to be
here due to weather conditions and traffic flying here from Detroit,
as I understand it. So, Mr. Nadler, welcome. You are recognized.
Mr. NADLER. Thank you, Mr. Chairman. Today, this Committee
will yet again conduct an exploratory discussion of whether various
allegations against the commissioner of Internal Revenue warrant
the commencement of formal impeachment proceedings. With less
than 30 legislative days remaining before this Congress enters near
2-month recess, there are certainly more pressing matters demanding our attention.
The horrible attack in Orlando cries out for meaningful response
from this Committee. Millions of immigrants long to come out of
the shadows to become legally part of our Nation. With national
elections looming just months away, the urgent need for election
reform goes unanswered. I could go on.
Instead, we have todays hearing, a potential precursor to impeachment, itself a highly time- and resource-consuming process.
Our most recent impeachment took more than a year to complete
in the House alone.

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This process necessitated the creation of a bipartisan taskforce to
conduct an independent investigation of the proposed charges, even
though the judge in question had been under investigation for
years. The taskforce reviewed the evidence, conducted depositions,
held hearings, and gave the accused individual an opportunity to
testify, cross examine witnesses, and invite witnesses of his own.
Then and only then did the taskforce consider the merits of the
proposed articles of impeachment, and vote to refer them to the full
Committee. Then and only then did the full Committee consider a
resolution of impeachment, and refer it to the House floor.
The power of impeachment is a solemn responsibility, assigned
to the House by the Constitution, and to this Committee by our
peers. That responsibility demands a rigorous level of due process.
There are no shortcuts if we hope for a successful conviction. Even
if we thought that this proposed impeachment were a good idea,
and I certainly do not, there are simply not enough days left in the
congressional calendar for us to finish the task.
As for the merits of this proposed impeachment, I would like to
submit two historical documents into the record. A 1974 report to
the House Judiciary Committee, which accompanied the impeachment of President Nixon, and the text of a speech by our late friend
and colleague, Representative Barbara Jordan of Texas from that
year.
Let me add that during the consideration of impeachment proceedings against President Clinton, I first reviewed everything I
could get my hands on, on what was an impeachable offense from
Justice Burgers book to various other things. I found this report
the most succinct, best, most accurate summary of what is impeachable, the Judiciary Committee report from 24 years earlier.
The 1974 report made an appearance at our first hearing on this
topic. The proposed resolution before us rests on a novel legal
premise, that we can impeach a government official for gross negligence, rather than personal misconduct. At our last hearing, Mr.
Conyers asked the gentleman from Utah if gross negligence constitutes an impeachable offense.
He responded, I think that is part of it, yes, yes I do. In fact,
in 1974, the House Judiciary Committee came out with a report,
and it talked about the standard by which an impeachable offense
should be held, and I happen to concur with thatthat is the quote
from Mr. Chaffetz. We have since gone back to review that 1974
report, and it makes no such conclusion about this legal theory.
The report never once even uses the term gross negligence.
Now I am certain that Chairman Chaffetz did not intend to mislead the Committee. His testimony is certainly not grounds for discipline by the House, even though he has not yet corrected his
misstatement. We all agree that the tools at our disposal for holding government officials responsible for their conduct are designed
for more substantial problems. When considering the case against
Commissioner Koskinen, if I pronounce it correctly, it would be
wise to apply the same standard.
Which brings me to the statement of the late gentlewoman from
Texas. As we considered articles of impeachment against President
Nixon, she warned us of the consequences of allowing partisanship
to interfere with our responsibilities. At the outset of the impeach-

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ment process, she said, Common Sense would be revolted if we engaged upon this process for petty reasons.
Congress has a lot to do, appropriations, tax reform, health insurance, campaign finance reform, housing, environmental protection, energy sufficiency, mass transportation. Pettiness cannot be
allowed to stand in the face of such overwhelming problems. . . .
It is reason, and not passion, which must guide our deliberations,
guide our debate, and guide our decisions.
Those words still ring so true, as does that list of unaccomplished
problems. With so many problems facing this Nation, with so much
left to do in this Congress, and so little time in which to do it, we
seemed to have ignored the counsel of the gentlewoman from
Texas.
The continued call to impeach Commissioner Koskinen, despite
likely failure in the House and near-certain failure in the Senate,
is, using her word, petty. And it is petty. It is beneath the trust
that has been placed in this Committee by our peers that we would
use 2 days exploring an impeachment that is never going to happen.
The plan to censure the commissioner where impeachment has
failed also seems like a pointless partisan exercise. A House resolution does not carry the force of law, or serve any purpose other
than to defame a good and decent public servant. And I should add,
to the extent that it did carry any force of law, it would be a constitutionally prohibited bill of attainder.
The late gentlewoman from Texas counseled us to let our reason
guide us, even when the temptation to lash out for political purposes is strong. Mr. Chairman, we have so much more important
work to do. We should focus our attention on that task instead, and
put this exercise behind us after today. I thank you, and I yield
back.
Mr. GOODLATTE. The Chair thanks the gentleman, and without
objection, all other Members opening statements will be made a
part of the record.
We welcome our distinguished witnesses today, and if you would
all please rise, I will begin by swearing you in.
Do you, and each of you, solemnly swear that the testimony that
you are about to give shall be the truth, the whole truth, and nothing but the truth, so help you God? Thank you, and let the record
reflect that all the witnesses have responded in the affirmative.
Our first witness is Jonathan Turley, professor of law at George
Washington University.
Our second witness is Andrew McCarthy, former Assistant
United States Attorney for the Southern District of New York, and
currently a senior fellow at the Foundation for Defense of Democracies.
Our third witness is Michael Gerhardt, professor of constitutional law, and director of the Program in Law and Government at
the University of North Carolina, School of Law.
And our fourth and final witness is Todd Garvey, legislative attorney at the American Law Division at the Library of Congress.
Your written statements will be entered into the record in their
entirety, and we ask that you each summarize your testimony in
5 minutes. To help you stay within that time, there is a timing

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light at the table. When the light switches from green to yellow,
you have 1 minute to conclude your testimony, and when the light
turns red, that is it, your time is up. Mr. Turley, we will begin with
you. Welcome.
TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF
PUBLIC INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY

Mr. TURLEY. Thank you, Mr. Chairman, Ranking Member Nadler, Members of the Judiciary Committee. My name is Jonathan
Turley, and I am the Schapiro Professor of Public Interest Law at
George Washington University. It is an honor to appear before you
today, to talk about the options available to Congress in addressing
the alleged misconduct of the IRS commissioner.
Since todays hearing is focused on the options rather than the
merits of congressional action, I will solely address the range of
remedies available to Congress, and some of the questions raised
as to barriers to those remedies facing the Committee.
Having served as lead counsel before the Senate in the last impeachment trial, where I was facing the Chairman on the other
side as part of the prosecution, and having represented the House
of Representatives recently in a Federal challenge to executive
overreach, I do not take these remedies lightly. When we go down
this path, there are many constitutional questions and procedural
issues to consider.
I would like, hopefully, today to remove a few of the questions
that have been raised, which I believe do not have merit in terms
of barriers to this Committee. But I also want to emphasize that
this is occurring at a critical time for Congress. Congress is facing
an unprecedented erosion of its authority vis-&-vis the executive
branch.
There is increasing obstruction and contempt displayed by Federal agencies with regard to congressional investigations, and there
is a loss of any credible threat of congressional action. To put it
simply, Congress has become a paper tiger within the tripartite
system. The rise of a dominant and increasingly unchecked executive branch has created a dangerous shift within our system. And
that vacuum left by years of passivity by Congress has left the system unstable, and often dysfunctional.
Without delving into the details of the current controversy, on its
face, it is a legitimate subject for congressional investigation. The
IRS Commissioner is accused of effectively weaponizing the IRS to
target political opponents. President Obama, himself, called that
type of allegation very serious; in fact, I think he said it was outrageous.
Now once again, the commissioner has every right to defend himself on those allegations. But for my analysis, I am going to assume
the allegations are true, and focus on what are the remedies or options that this Committee can take. The most notable and alarming
aspect of this case, and something that I have testified about before, is that a small organization like Judicial Watch was more successful in securing information from the Administration than the
United States Congress.

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Now, that is perfectly bizarre, that using the Freedom of Information Act, which is a relatively weak statutory platform, a small
organization had greater success because of the obstruction of this
Committee, and I think that the Framers would never have anticipated, let alone condoned, such a bizarre situation.
There is a lack of functional deterrence today to such obstruction.
In economics, as I talk about, we often look at the rate of detection
and the size of the penalty, which are both balanced in terms of
deterrence. Agencies act as rational actors, and right now there is
no penalty. That is why this is occurring, because Congress has
been largely dormant.
I talk in my testimony about the classic means that Congress has
used in the past, from appropriations or legislative slowdowns to
confirmation questions to oversight. Those remedies have proven to
be unsuccessful because of this vacuum left by congressional passivity.
That leaves what are sometimes called nuclear options, individual courses taken against officials who commit these acts.
Things like impeachment, contempt, censure, and fines. I focus my
written testimony on each of those options, and I will be happy to
talk about them today.
Whatever the conclusion of this body is as to the merits of these
allegations, which I am not here to testify about, I think this body
should understand that it has the tools to respond. If our system
is to function, Congress must matter. Congressional subpoenas
must be enforceable. Conduct that is contemptible must be punishable. This body has the means to do that. The question is not the
means, but the will to do it.
I thank you for your time today, and I will be happy to answer
any questions that you may have.
[The prepared statement of Mr. Turley follows:]

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Mr. GOODLATTE. Thank you, Mr. Turley. Mr. McCarthy, welcome.
Mr. MCCARTHY. Thank you, Mr. Chairman, Congressman Nadler. Mr. Chairman, let me just clarify, I am not associated with the
Foundation for Defense of Democracies, and have not been
VOICE. You have to push the button.
TESTIMONY OF ANDREW C. McCARTHY, FORMER ASSISTANT
U.S. ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK

Mr. MCCARTHY. Okay, thank you. I just wanted to clarify, I do

not have affiliation with that organization. I was a Federal prosecutor in the Southern District of New York for a little over 18
years, retiring from the Justice Department in 2003 as the Chief
Assistant U.S. Attorney in charge of the Southern District satellite
office.
Since retiring from the Justice Department, I have been a writer
focusing on matters of law enforcement, national security, constitutional law, politics, and culture. Conceitedly, I tend to come at policy matters from a conservative or constitutionalist perspective.
Nevertheless, I have always believed the application of legal principles and precedent should be a nonpartisan endeavor, just as it
was when I was a prosecutor.
In my post-Justice Department career, I have written several
books. One, called Faithless Execution, is about impeachment. The
Framers saw impeachment as an indispensable tool, to quote
James Madison, in the constitutional framework of divided authorities, which obliges Congress to police executive overreach.
The principal purpose of the Constitution is to limit the power
of government to intrude on the liberties and suppress the rights
of the American people. Separation of powers is the primary way
the Constitution guarantees these liberties and rights.
Thus, the Framers were deeply worried that maladministration,
including overreach, lawlessness or incompetence, could inflate constitutionally limited executives into authoritarian rogues would
could undermine our constitutional order.
The Framers settled on high crimes and misdemeanors, a standard elaborated on by Alexander Hamilton, who said that these
were offenses which proceed from the misconduct of public men, or
in other words, from abuse or violation of some public trust. They
are of a nature which may, with peculiar propriety, be denominated
political, as they relate chiefly to the injuries done immediately to
the society itself.
I am quite sympathetic to Congressman Nadlers remarks about
the difficulty of fixing the standard, and I think the difficulty of fixing it is because the standard in each individual case has to balance three different things: the gravity of the misconduct or incompetence alleged, the culpability of the official at issue, and the duty
of Congress, and I think this is the one that is underrated the most
and needs to be emphasized, the duty of Congress to uphold the
constitutional order in light of those two considerations.
Impeachment is one of the principal checks on the damaging
tendency toward agglomeration of executive power. Executive overreach invariably involves the usurpation of congressional power,
the misleading of Congress, and the abuse of the authority granted
to the executive by Congress. The Framers thus expected that law-

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makers would have an incentive to defend both the American people and the institution of Congress, notwithstanding partisan ties
to the President, or the executive branch.
Nevertheless, it must be stressed that impeachment is a political
remedy, not a legal one. Consequently, regardless of how clearly
the legal requirement of high crimes and misdemeanors is established, impeachment and removal as a practical matter will not
occur absent sufficient public consensus to induce the Senate to remove the official at an impeachment trial.
Impeachment cases must be built politically by aggressive congressional exposure of executive misconduct. If they are not, it is
a mistake for Congress to proceed with impeachment, even if lawmakers are in a position to prove many instances of misconduct.
There is, of course, a caveat here. The degree to which political
support must be built varies directly with the degree of political
connection between the public and the executive branch official in
question. The public has a great political investment in a President, the official in whom the Constitution vests all executive
power. To take the case of President Obama, for example, the
American people have elected him not once, but twice. The public
has considerably less political investment in an unelected subordinate official responsible for carrying out the duties of critical executive agencies, the power of which had been abused.
In the latter situation, it is a duty of the President to take action
to discipline or terminate the rogue executive agency officials. If
the President fails in this duty, it is essential that Congress take
action. Thank you, Mr. Chairman.
[The prepared statement of Mr. McCarthy follows:]

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Mr. GOODLATTE. Thank you, Mr. McCarthy. Mr. Gerhardt, welcome.
TESTIMONY OF MICHAEL J. GERHARDT, SAMUEL ASHE DISTINGUISHED PROFESSOR IN CONSTITUTIONAL LAW & DIRECTOR, PROGRAM IN LAW AND GOVERNMENT, UNC
SCHOOL OF LAW

Mr. GERHARDT. Thank you, Chairman Goodlatte. I appreciate the

honor of being here today. It is an enormous privilege to appear before you not just now, but each and every time I have had the opportunity to come talk to you about important about constitutional
law.
As a constitutional law professor, I cannot think of any greater
responsibility I have, any greater duty I have, to be able to talk to
you about these important questions we are about to talk about
today. I have had the chance to talk to you about these before, and
I am happy to send our conversation to todays hearings.
As I understand it, there are at least two major questions that
you are trying to answer today, trying to think through. The first
has to do with who may be impeached, who qualifies as an officer
of the United States, so that they then may be subject to impeachment?
I think on this score, the report we have from the CRS is an excellent guide. I think it tells us quite rightly that the critical thing
to consider here is whether or not the particular officials you are
considering as possible subjects for impeachment hearing have substantial or significant responsibility in their different realms of authority.
It is certainly true that not every officer, that is to say, not every
official, is subject to impeachment. And at the same time, it is also
true, I think, that some officials that exercise significant responsibility would be covered.
I want to also stress, as the CRS report itself stresses, that we
are moving into uncharted waters here. The fact is that as far as
impeachment is concerned, this body, the House of Representatives, has never impeached a sub-Cabinet-level official.
And so when we do move into uncharted waters, I would ask everybody to take a deep breath. I would ask everybody to take a
pause, and consider in these circumstances what other means are
available to keep such officials in check. Do we trust those other
mechanism to work? And if we do not trust those other mechanisms to work, I think we have to be candid about why we do not
trust them.
The other critical question, of course, you are facing today is the
basic standard of impeachment. This is not the first time, I assume
it will not be last time. The House Judiciary Committee considers
the constitutional standard for impeachment. We have a number of
different sources we can look at that will guide us in trying to figure out what qualifies as an impeachable offense. We know from
the constitutional language, of course, that treason and bribery are
covered, but those are relatively easily defined, and well understood.
The critical language we are trying to unpack here today is high
crimes and misdemeanors. The Framers, I think, believed, and

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early commentators including Justice Storey believed, that what
those terms referred to are what we call political crimes; and political crimes are not self-defining.
What Justice Storey and others expected is that over time, this
Committee would develop and effect something akin to the common
law that would illuminate what would qualify as an impeachable
offense. Political crimes are offenses against the state. Political
crimes are serious misconduct, breaches of duty, breaches of the
public trust.
But we have to get more concrete. And that is where I think your
own decision-making over time, your own historical practices, are
an important source to consult, because in my opinion, those also
underscore that when we consider whether or not particular misconduct qualifies as an impeachable offense, it has to at least have
two elements: one is bad intent, malicious intent and the other is
seriously bad conduct.
And so if you are looking at any particular situation, any particular circumstance, I think it is important to ask whether or not
you have each of those present based on credible, serious fact-finding, before you can approve any kind of an impeachment article.
To go further, I think it is also worth considering a very critical
question. I think this is the question I am sure you always ask
yourselves before you undertake an important responsibility. And
that critical question is, what kind of precedent are you going to
create if you move forward, if you take positive action here?
In my opinion, and I am just a law professor, but in my opinion,
I think gross negligence, or gross incompetence, does not qualify as
an impeachable offense. That is a step onto the slippery slope of
offenses I do not think the Framers and I do not think the common
law support as impeachable offenses. I am happy to answer any
other questions you have. Of course, you have my written statement.
You can ask questions about that or anything else today. Thank
you.
[The prepared statement of Mr. Gerhardt follows:]

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Mr. GOODLATTE. Thank you, Mr. Gerhardt. Mr. Garvey, welcome.
TESTIMONY OF TODD GARVEY, LEGISLATIVE ATTORNEY,
AMERICAN LAW DIVISION, LIBRARY OF CONGRESS

Mr. GARVEY. Thank you, Mr. Chairman. Chairman Goodlatte,

Mr. Nadler, and Members of the Committee, the Constitution establishes a general framework governing the execution of impeachment. Unlike the law-making function, the impeachment power is
given wholly to Congress, with the house exercising the sole power
of impeachment, and the Senate the sole power to try those impeachments.
But the Constitution also establishes a number of limitations and
safeguards on the use of the impeachment power. Among the limitations are that the officials eligible for impeachment are limited
to the President, Vice-President, and those who qualify as civil officers, and that the offenses for which an eligible official may be impeached and removed are limited to treason, bribery or other high
crimes and misdemeanors.
Among the safeguards are the requirement that the two-thirds of
the Senate concur in any impeachment conviction, and that the
consequences of conviction shall not extend further than removal
from office and disqualification from holding a future Federal office.
In a historical sense, Congress has formally exercised its impeachment power on a limited number of occasions. The House has
impeached 19 government officials. The vast majority of those impeachments, 15 of the 19, have been Federal judges. The other four
impeachments consist of two Presidents, Andrew Johnson and William Clinton, one Senator, William Blunt, and one Cabinet official,
Secretary of War William Belknap. Eight of the 19 officials who
have been impeached by the House have been convicted by the
Senate, all of whom were Federal judges.
It would appear that the general impeachment framework leaves
room for interpretative decisions by Members of both the House
and the Senate in the exercise of their constitutionally accorded
powers. Among the uncertainties in that framework is the question
of which offenses constitute the type of high crimes and misdemeanors that establish grounds for an impeachment.
In considering that question, then-Congressman Gerald Ford famously stated that an impeachable offense is whatever a majority
of the House of Representatives considers it to be at a given moment in history. While there may be some practical truth in that
statement, the Houses views of what constitutes an impeachable
offense, both current and historical, carry great weight.
This proposition finds support in both the Constitution and its
vesting of the sole power of impeachment in the House, and the Supreme Courts statement in Nixon v. United States that the judiciary was, not chosen to have any role in impeachments.
For these reasons, it would appear that the House and Senate
precedents likely form a prudent body of authority for interpreting
the scope of the impeachment power. The impeachment precedents,
however, do not establish fixed standards for the actions that constitute an impeachable offense.
It is, therefore, difficult to make general assertions based on past
practice as to the type of conduct that satisfies the constitutional

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requirement. For example, House precedents do not appear to
speak directly to allegations of misconduct in the context of a Congressional investigation. Perhaps the closest analogue is the article
of impeachment approved by the House against Judge Thomas
Porteous in 2010 for false statements made to the Senate during
consideration of his judicial nomination. The House has also previously approved articles of impeachment against various Federal
judges for false or perjurious statements, but generally when those
statements have been made during a criminal proceeding or before
a grand jury.
In addition, it should be noted that this Committee approved an
article of impeachment against then-President Nixon, alleging that
he had withheld information subpoenaed by a congressional Committee. He resigned, however, before the House voted on the Committees recommendations.
Finally, during the Clinton impeachment, the House, though approving articles of impeachment alleging perjury and obstruction of
justice, rejected an article of impeachment approved by this Committee relating to allegations that the President gave misleading
responses to congressional inquiries.
In closing, I would note that censure may be a tool available to
the House as either an alternative to or supplement for impeachment of an executive branch official. A censure resolution can be
in the form of a one-house or concurrent resolution, and may include a formal reprimand of the executive branch official, or express the Houses opinion that the official should resign or be removed by the President.
A censure resolution is not legally binding, but may be significant for its symbolic impact. Although censure has a long-standing
history, the House and Senate have adopted only a handful of these
resolutions. To highlight one pertinent example, in 1886, the Senate censured the sitting Attorney General based on his refusal to
provide certain records to the Senate.
This concludes my prepared statement. Thank you for the opportunity to appear before the Committee, and I will be happy to answer any questions you may have.
[The prepared statement of Mr. Garvey follows:]

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Mr. GOODLATTE. Thank you, Mr. Garvey. We will now begin
questioning of the witnesses under the 5-minute rule, and I will
begin by recognizing myself.
Mr. Turley, welcome back before this Committee. In your opinion, if the Senate will not remove an impeached official from officialin other words the House had taken action, the Senate now
has before itwhat are the most practical options for the House,
in advance of reaching that point, in addressing officials who may
have committed misconduct?
Mr. TURLEY. Thank you, Mr. Chairman. As my written testimony
discusses, the most obvious response to alleged false statements or
obstruction of an investigation was traditionally a contempt sanction, and I talk in my testimony at length about how the executive
branch has effectively gutted that option for Congress, something
that I believe Congress should serious look at in terms of its inability to get contempt prosecutions because of obstruction by the Justice Department.
I also talk about the possibility of financial penalties, from fines
to pensions. That creates some different issues, depending on
whether they are vested interests, whether they are based in statutory authority, or implied congressional authority.
Another obvious choice would be censure. I disagree with some
people who have said that censure is not constitutional for this
body to consider. I find that completely meritless. It is clear in my
view that this body can censure an executive official. In fact I find
it rather bizarre to suggest that this body can condemn actions of
countries, agencies, but not individuals. I do not see how you can
read that into the Constitution. But I believe that
Mr. GOODLATTE. Let me interrupt. I will come back to that, but
I first want to ask another question of Mr. McCarthy. Mr. McCarthy, you state in your written testimony that the Framers were
deeply worried about maladministration, including overreach, lawlessness, and incompetence; that they could inflate the constitutionally limited executive into an authoritarian rogue who undermines our constitutional order.
Professor Gerhardt, on the other hand, writes in his written testimonyand he also stated it in his oral testimonythat the
Founders considered but rejected making certain high-ranking officials impeachable on broader grounds such as maladministration.
Who is right on that point? Did the Framers consider maladministration an impeachable offense, or not?
Mr. MCCARTHY. I think, Mr. Chairman, that it is more fitting,
perhaps, to say that one answer is more complete than the other.
Certainly the Framers considered maladministration, but they rejected it as the standard. And that is part of why they settled on
high crimes and misdemeanors. They were concerned of the promiscuous tendency of a standard like maladministration to be applied in trifling circumstances rather than really serious ones.
On the other hand, I think it is interesting that Professor
Gerhardt cited to Justice Storey, and yet did not quote to you what
Justice Storey actually said, in saying that gross neglect did not
qualify. Here is what Justice Storey actually saysImpeachment
applies to political offenses growing out of personal misconduct or

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gross neglect, or usurpation or habitual disregard of the public interests, various in their character, et cetera.
Mr. GOODLATTE. Let me interrupt you there, since I have a limited amount of time, and ask Mr. Gerhardt if he wants to respond
to that.
Mr. GERHARDT. Sure, thank you. I think I probably have quoted
Justice Storey in a number of different respects, including the book
I wrote on impeachment. But more pertinent to this, I think, is
that the critical thing I think to keep in mind here is that the notion of high crimes and misdemeanors was not fixed or precisely
defined at the time of the ratification.
And over time, as I said in my oral testimony, I think in my written, too, that in effect, I think what the Framers expected was the
evolution of a kind of body of common law. Your decisions over
time would become important. So I think you cannot point to one
particular time in the past, and say, Oh, here is where the meaning got fixed. It is going to evolve over time. I believe, it is my belief, that over time that language in the Constitution comes to
mean you need both bad intent and a bad act. But I think that is
how I construe the common law.
Mr. GOODLATTE. Let me interrupt you, because I want to ask a
question of Mr. Garvey, and my time is running down. Mr. Garvey,
Mr. Turley mentioned a censure, in his belief that that is an appropriate remedy for Congress to use. What do you believe about censure? Is it a remedy that is available to Congress in instances such
as these? And I will go back to everyone else and ask them to respond to that as well.
Mr. GARVEY. Thank you, Mr. Chairman. Yes, it seems so long as
it is in the form of a one-house resolution or a concurrent resolution that is nonbinding that would be consistent with the Constitution. We have a number of examples in history in which either the
House or Senate have censured executive branch officials, including
two Presidents.
Mr. GOODLATTE. And including sub-Cabinet level employees of
the executive branch, is that not correct?
Mr. GARVEY. That is right. A sitting Attorney General, and as I
recall
Mr. GOODLATTE. Attorney General would be a Cabinet-level appointee. But I believe in recent times there had been a censure of
a sub-Cabinet level employee.
Mr. GARVEY. My understanding of the situation is that the last
censure resolution approved by either the House or Senate was
during the Teapot Dome Scandal in the 1920s. I am not sure of
an approved censure resolution after that.
Mr. GOODLATTE. Okay, thank you. Mr. Turley, I think you have
answered already, but quickly, if you have anything to add.
Mr. TURLEY. The only thing I would add is that in terms of censure, I think one thing that should be avoid is I do not believe that
censure is a creature of the impeachment provisions. And I believe
that creates some uncertainty. I think that Congress has the inherent authority to censure. So one of the things that I encourage the
body to consider is if you are going to create a censure resolution,
it should be in regular order. It is not part of an impeachment

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process. I do not think you want to say that your power to censure
is derived from the impeachment provisions.
Mr. GOODLATTE. Mr. McCarthy?
Mr. MCCARTHY. I agree with Professor Turley about Congress
power to censure. But to my mind, it is almost beside the point,
because censure is a two-way street. Impeachment is a two-way
street. The question is not just how much misconduct has been
committed by the executive branch; it is whether this branch is up
to its responsibility to check executive overreach. So if you censure
somebody who deserves to be impeachedand I do not have a view
on this particular case, because I have not investigated itbut it
is just as censurable to my mind for Congress to fail in its duty
as it is for the official who has committed the conduct meriting censure.
Mr. GOODLATTE. Mr. Gerhardt?
Mr. GERHARDT. On the censure question, I think we need to be
clear about a couple things. The first is what we mean, of course,
by censure. I believe what we are all saying, and this is at least
what I would say, is that censure, in our conversation, is referring
to a nonbinding resolution. As such, of course, you approve such
things all the time. Having said that, I would caution this Committee to be very careful in the way it words its censure resolution,
and what it intends for that resolution to be or to do.
The critical thing to keep in mind is there is not much distance
between a censure resolution, as we have just defined it, and a bill
of attainder. A bill of attainder would be a decision by this body,
in lieu of a trial, to exact or impose a sanction on an official. I do
not believe the House Judiciary Committee, for that matter the
House or Senate, has that authority. So, the thing to be careful
about is the point at which a resolution that says something might
be bad, or you are expressing disapproval, and your effort to impose a sanction, which I think would be struck down as a bill of
attainder.
Mr. GOODLATTE. Thank you. My time has expired. The Chair recognizes the gentleman from New York, Mr. Nadler.
Mr. NADLER. Thank you, Mr. Chairman. Professor Gerhardt, can
you walk us through the process of impeachment rapidly? That is
the rapidly walk, not rapidly impeach, in the House of Representatives? What are the obligations of the House Judiciary Committee?
Are we obligated to independently investigate the allegations, do
our own fact-finding, conduct interviews and depositions?
Mr. GERHARDT. You are certainly entitled to do that. Yes, sir.
Mr. NADLER. Are we obligated to do that? Or can we rely on
somebody else?
Mr. GERHARDT. I think whether you are obligated or not is going
to be subject to some interpretation. But I think, when the House
Judiciary Committee does not do its own fact finding, it undermines the credibility of what it has done.
Mr. NADLER. Thank you. And what due process considerations do
they owe to the accused official? Does he have a right to counsel
before this Committee, opening statements and hearings, right to
question witnesses, the right to introduce witnesses?
Mr. GERHARDT. I certainly think that would all be true. Yes, sir.
Mr. NADLER. That would all be appropriate?

86
Mr. GERHARDT. Oh, it would be quite appropriate.
Mr. NADLER. And what would be the consequences should an impeachment proceeding that failed to honor this due process for the
accused?
Mr. GERHARDT. Well, if you do not honor the due process rights
of the accused, or give the target of an impeachment some opportunity to defend himself, or herself, I think what the House Committee ends up doing, again, is seriously undermining what it is attempting to do.
Mr. NADLER. And, given what you just said, and your understanding of the process, do you think it is reasonably possible for
this Committee to undergo a successful independent review of the
accusations against Commissioner Koskinen in the remaining
weeks of this Congress?
Mr. GERHARDT. Well, you are in a better position than I to say
that. But, with time growing short, it is very difficult to do. Let me
just emphasize two quick things. Impeachment is supposed to be
a last resort. It is supposed to be something you do after you have
explored all the other options. And the other thing is, I think, of
course, it should be undertaken carefully and deliberately, and
thoughtfully.
Mr. NADLER. Thank you. Now you have written that what kinds
of acts constitute high crimes, and misdemeanors, an extensive literature on that. We went through that in 1974, in 1998. Basically,
political acts that threaten liberty, separation of powers, the structure of the state, essentially?
Mr. GERHARDT. They might include some indictable crimes. But,
of course, they also include things that are not indictable.
Mr. NADLER. Right.
Mr. GERHARDT. Some of things you just mentionedpolitical acts
which undermine the integrity, undermine the constitutional system. To quote from the conventions themselves, acts that would
subvert the Constitution. I would just note that all the examples
that were mentioned in the constitutional and ratification conventions had to do with serious political acts that were subverting the
Constitution.
Mr. NADLER. And does Commissioner Koskinens alleged conduct
rise to this level?
Mr. GERHARDT. I think the fact finding that has been undertaken
so far, at best, shows perhaps, as my friend Charlie Jay at Indiana
Bloomington described in one newspaper article I read, maybe that
he might bethe subject of impeachment could be slow and stupid,
but that does not mean it makes the person impeachable. In other
words, you can make mistakes. You can even have bad judgement.
But those things are not
Mr. NADLER. You can even be grossly negligent.
Mr. GERHARDT. You can even be grossly negligent. That does not
rise, at least in my opinion, to an impeachable offense. Keep in
mind, some things could be misconduct. That falls short of being
an impeachable offense.
Mr. NADLER. Okay. Now, in your written testimony, you state, A
principal concern among the Framers was to distinguish the Federal impeachment process from the English one, in which anyone

87
could be impeached for any reason. How did the framers make
that distinction?
Mr. GERHARDT. Well, they made that distinction because they
were quite familiar with the British system of course. And they had
it in front of themselves to some extent as lawyers, and as they entered into the process of the Constitutional Convention, and they
did not want their American system to be like the British system.
They, actually, were trying to narrow who would be subject to impeachment, narrow the sanctions that would be available, and narrow the grounds on which it would be possible.
Mr. NADLER. And has the House ever impeached anyone on the
theory of gross negligence?
Mr. GERHARDT. No, sir.
Mr. NADLER. What would be the consequences for setting that
precedent?
Mr. GERHARDT. The House has never impeached anyone for gross
negligence, or I think, anything akin to it. And I think opening the
door to that actually, I think, is going to present all sorts of serious
problems. The impeachment process was not meant to be a kind of
roaming commission that would then cover all kinds of mistakes or
misconduct. It is for the most serious things.
Mr. NADLER. Now, House Resolution 737 was introduced to censure the commissioner, and expresses the sense of the House that
the commissioner should give up his government pension, and any
other benefits. Does this resolution carry with it the force of law?
And, if it did, would it not be obviously and totally a bill of attainder?
Mr. GERHARDT. As you described it, that would be a bill of attainder.
Mr. NADLER. Because we have a 1954, I think, Supreme Court
decision thata provision in an appropriations bill, that said no
funds here appropriations should be used to pay the salaries of two
named individuals. That was a bill of attainder, was it not?
Mr. GERHARDT. Right. Yes, sir.
Mr. NADLER. So, this is clearly a bill of attainder to the extent
that it has any force of law?
Mr. GERHARDT. Yes, sir.
Mr. NADLER. Does anyone disagree with that? No. My time is expired. I just want to make one historical correction, because I hear
this all the time and it really bothers me. Mr. McCarthy said the
Constitution was enacted to limit government power and provide
for liberty. No. The Articles of the Confederation were enacted for
that. The Bill of Rights was enacted for that.
The Constitution was enacted to strengthen government power to
enable the central government to lay taxes, and to function effectively. We put limits on that through the Bill of Rights, but the
Constitution was enacted for the opposite purpose. Just a historical
note. Thank you. I yield back.
Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from Iowa, Mr. King, for 5 minutes.
Mr. KING. Thank you, Mr. Chairman. I thank the witnesses for
testifying here today. It is some pretty fascinating perspectives that
I am hearing. I go first to Mr. Garvey. And I want to make sure
that I was listening carefully. You spoke of the impeachment of

88
President Clinton. Was that your assertion that the Senate rejected
the House impeachment resolution?
Mr. GARVEY. Sorry. What I was saying, Congressman, was that
this Committee approved four articles of impeachment against
President Clinton, perjury before the Grand Jury, perjury in a civil
deposition, obstruction of justice, and providing false and misleading statements to a congressional Committee. The House, as a
whole, approved only two out of those four articles.
Mr. KING. And the Senate? Did you speak to the Senates conclusion?
Mr. GARVEY. I did not speak to the Senates conclusion.
Mr. KING. Okay. I am glad I clarified that, because I wanted to
make that point. And it happens to go back to an earlier conversation I had before this hearing began with Professor Turley. And,
just to be able to put it into the record that, when we got a vote
in the United States Senate on those charges that they took up and
determined to try President Clinton on, all of those questions that
came before the Senate were wrapped up into one question, which
was, Is he guilty of these various charges?
And, if so, is it in your judgement that it is worthy to remove
him from office, if he is guilty? And it allowed every senator to
cloak themselves in whatever argument suited them politically.
And the American people never got a verdict from the United
States Senate. And that is a big disappointment to me, that one of
the highest constitutional duties that can be served up to the
United States Senate did not have history record a verdict after a
trial in the Senate. So, I bring that point up for that reason.
Mr. CHABOT. Would the gentleman yield? Would the gentleman
yield for a moment?
Mr. KING. Yes, I would.
Mr. CHABOT. I thank the gentleman for yielding, and I will be
very quick. Also, to add to the record, I might note, having been
one of the House managers in the impeachment of President Clinton, the House managers were limited to just three witnesses. And
those all had to be done by video tape. So, our hands were, to a
great extentwe were handcuffed. I thank the gentleman.
Mr. KING. I thank you. And reclaiming my time, I wish I had
more time. I will yield to the gentleman from New York.
Mr. NADLER. I am just curious about what you just said. You
said the Senate never reached a verdict. The Senate voted down
the Articles of Impeachment. Is not that a verdict?
Mr. KING. No. And I am reclaiming my time. I am happy to take
that up at another time. I would be very interested to do so. And
Mr. Nadler knows I mean that. So, I turn instead to Mr. Gerhardt.
And I will make this assertion, that, as an employerand I have
been since 1975our employees are at will employees. Now, we
can dispatch them, or fire them, remove them, from their office for
any reason or no reason at all, provided we are not violating a specific law.
And I would put this Congress in that kind of a concept with regard to the executive branch employees who are going outside the
bounds of their job violating the Constitution. And your position
was, I believe, that there needs to be malicious intent, and they
have to be serious bad conduct.

89
I would assert, instead, that Congress gets to decide what that
is. And we can be as specific as we like, or as vague as we like.
But I would submit that, if Congress decided to impeach perhaps
the director of the IRS, that we could do so for any reason or no
reason at all. And it comes back to the political foundation of what
would the consequences be if Congress just said, We decided to
have a closed hearing, and we are going to impeach the director of
the IRS, to get this over with and send a message to the President
and the American people we are not going to mess with this kind
of persecution against, especially, conservatives. What do you think
the consequences would be if Congress took that position?
Mr. GERHARDT. Well, sir, so two quick thoughts. The first is in
the corporate world, in the corporate example, board of directors
are not able to fire CEOs for gross negligence or gross incompetence. There has to be at least deliberate indifference. In other
words, there has to be some bad faith.
The second point is that all powers, including the impeachment
power, are limited. The Constitution limits every governmental authority. And so, again, you cannot impeach, at least
Mr. KING. What would the consequences be, if Congress decided
to impeach without making a public case, and just simply said, We
have our reasons, and we have impeached? What would the consequences be to Congress for such an act, presuming that the Senate removed from office?
Mr. GERHARDT. I am sorry, presuming the Senate actually removed somebody after that?
Mr. KING. Yes.
Mr. GERHARDT. Well, I think the consequences are comprised, in
part, by what the Senate does. But if the House simply impeaches,
and does not have evidence, and does not back it up, the consequences, actually, are political. Not like a court could strike that
down, I do not believe. And you take the political heat in a sense,
the political consequences for that. But, also, one consequence is
how the Senate treats what you do.
Mr. KING. Watching as my time has expired, I would just submit
that I appreciate that answer, because in the end of this, it is a
political question before this United States Congress, the House,
and the Senate. And, when the other branches of government violate the Constitution, it falls back to us to make the political decision. And that is one of the very few ways that we can enforce.
And, if I had more time, I would pose a question as to what
would happen if Congress would expand its powers into the executive and the judicial branch, in the fashion that the judicial and the
executive branch are expanding their powers into our legislative
branch. But I will leave that as a rhetorical question, and yield
back the balance of my time. Thank you, Mr. Chairman.
Mr. GOODLATTE. The Chair recognizes the gentlewoman from
California, Ms. Lofgren, for 5 minutes.
Ms. LOFGREN. Thank you, Mr. Chairman. You know, as I was listening, I was thinking this question of impeachment is something
that, oddly enough, my career has intersected several times, starting in on the Nixon impeachment, when I was a young staffer
working for Congressman Don Edwards.

90
And, at the time, the Judiciary Committee published, really,
quite an excellent report on the history of impeachment going back
to its use in Great Britain, the Constitutional Convention. And I
use that as a guide. I thought it was so thoughtful. And I wonder,
if it is possible, Mr. Chairman, to ask unanimous consent to put
thatoh, you already put that into the record.
You know, we started this Congress reading the Constitution.
And here is the guiding provision of the Constitution, Article II,
section 4, The President, Vice-President, and all civil officers of
the United States shall be removed from office on impeachment for
and conviction of treason, bribery, or other high crimes and misdemeanors. Now, those words have a meaning.
And, if we look back into the history of our country, I think it
is correctand Mr. Gerhardt, correct me if I am wrongI do not
think we have ever impeached a person, a civil officer below the
Cabinet level. And I do not think we have impeached a Cabinetlevel official since 1876. Is that correct?
Mr. GERHARDT. That is true.
Ms. LOFGREN. And the meaning, as evidenced in the historical
record, of the words, high crimes and misdemeanors, is basically
some activity that is so severely wrong that it undercuts the capacity of the structure of government. It is that serious. Is not that
correct?
Mr. GERHARDT. Yes, maam. It is like attacking the constitutional
government.
Ms. LOFGREN. Yeah. It would really destroy the three branches.
Mr. GERHARDT. Right.
Ms. LOFGREN. And I look at the whole history of our country, our
ups and downs, the last time this was used for a Cabinet level official, 1876, and I am going, If we wereand I think the gentleman from Iowa is right. I mean, the Congress can do whatever
it wants when we have a vote, but we should be mindful of the impact. If we depart from our history, and from our Constitution as
determined and interpreted by our history, then we chart a different kind of America than we have had in the past.
And so, I guess, my question is if we were to utilize, in a very
radical way, the tool of impeachment to basically start removing
civil officers through impeachment, could that not have the impact,
Mr. Gerhardt, of really changing the balance of power between
Congress and the executive, so that the executive would become
less able to act, and really be a departure for the last couple hundred years of our history?
Mr. GERHARDT. I think the answer, of course, would be yes. That
is one interpretation of what happened when the Congress tried to
impeach and remove President Johnson. That episode is largely understood as an attempt to sort of take out a policy difference between Congress and the President through the impeachment process, which I think history has treated as inappropriate.
One important check, I think, on this body, as everybody here
knows, is history, the historical judgement. It is one reason why I
took the liberty of ending my written statement with a quote from
the musical Hamilton, saying, History has its eyes on you. It is
not just lyrical. I think it is actually true. It has its eyes on all of
us. It holds all of us accountable. So, if the House or anybody else

91
missteps, history is a cold hearted judge in giving you a grade or
a sanction on whatever it is.
Mr. GOODLATTE. Will the gentlewoman yield?
Ms. LOFGREN. I am almost out of time. I would just like to close,
since I know I just have less than a minute left, by indicating that,
you know, I think it would bewhen looking back on the Nixon impeachment, it ended up being bipartisan, because there was a
judgement, not just on one party versus another, that there had
been a serious problem here that was undercutting the actual
structure of government.
And I guess, if you look at the history, when you have a partisan
action in a civil officer, I think it is an alert that there is a problem, that it is maybe based in a political difference, not in a serious
effort to protect the integrity of the constitutional system. And,
with that, I see my red light is on, and I yield back, Mr. Chairman.
Mr. GOODLATTE. The Chair thanks the gentlewoman and recognizes the gentleman from Texas, Mr. Gohmert, for 5 minutes.
Mr. GOHMERT. Thank you, Mr. Chairman. And I could not agree
with friend from California more. And that is why, in a previous
hearing in this room, I pointed out that, when we found out from
the IG Inspector and the Department of Justice that there could
have been thousands of abuses of the national security letter, I
called the White House, talked to the Chief of Staff, and said, This
is outrageous. We are not going to defend this. You need a new Attorney General.
And I am waiting for a Democrat to stand up and say, We have
been lied to in Congress, things have been obfuscated, hidden, and
we are not going to stand for this either. But it has become so partisan that one of my other friends in Congress has pointed out, if
Republicans had rallied around Richard Nixon the way Democrats
have rallied around abusers in this Administration, Nixon would
have finished out his term, Republicans would have kept control
that they lost, so many of the liberal accommodations that came
through legislation in the aftermath of Watergate would not have
occurred, we would not have had Jimmy Carter, and history would
be different.
But, fortunately, most of us believe right is right, wrong is
wrong, you are not supposed to lie. But Mr. McCarthy, you taught
me a great deal from your book Faithless Execution. I know this
a lot to ask, but in a nutshell could you give us the premise of your
book? And I know you have touched on it in your written and oral
testimony, but just the book itself, the nutshell lesson to take
away.
Mr. MCCARTHY. Congressman Gohmert, it would be that impeachment is an indispensable ingredient of the governing framework that the Constitution provides for us, which requires, if it is
to work, that the branches can hold each other in check.
And, if you get to a point where the major checks that Congress
has given on executive overreach, the power of the purse, and impeachment being the main onesif you get to a point where you
basically say, We cannot use the power of the purse because that
will shut down the government, and we can never impeach anyone, then you are greenlighting misconduct, because those are ba-

92
sically the only ways that you have, as a practical matter, to hold
the executive branch in check.
And the point is not just, again, the misconduct of the official,
because every time misconduct of an executive branch official
comes up, and a proceeding like this comes up, you are on trial as
much as the official you are inquiring into is on trial.
The question is whether this body can perform its constitutional
function of keeping the executive branch in check. If it does not,
we no longer have the same system of government. You know,
there was some dialogue back and forth a moment ago about
whether using impeachment in certain instances would shift our
balance of power. The balance of power is already shifted. You have
executive overreach to a fair thee well.
And, essentially, nothing is done about it, because the thought on
the Hill appears to be that the remedies that you would have to
use to check the President are not worth invoking. And, as a result,
you encourage and have more and more lawlessness.
So, impeachment is a political remedy, not a legal one. And what
that essentially means is you have to give as much process in a
proceeding like this as is necessary to keep the proceeding politically viable, that it will have integrity that the public will respect
the outcome of it. But what that also means, as I argue in the
book, is that you can have 1,000 high crimes and misdemeanors.
If you do not have public consensus that the official should be removed, then the official will not be removed.
Mr. GOHMERT. We have seen that.
Mr. MCCARTHY. But it is really up to you to highlight for the
public why the misconduct at issue threatens our constitutional
order.
Mr. GOHMERT. Well, Professor Turley, it seemed like most of my
career you were testifying the positions that were more favorably
accepted by my Democratic colleagues. But the great thing I have
appreciated about you is that you are a man of integrity, you step
forward and say what you believe no matter who is offended, or
who does not like what you say. And I think that if we do not take
some steps here to protect our jurisdiction, I am afraid we lose the
ability to do what you have done. But my time expired, so I cannot
yield back what I do not have.
Mr. GOODLATTE. The Chair thanks the gentleman and recognizes
the gentleman from Georgia, Mr. Johnson, for 5 minutes.
Mr. JOHNSON. Thank you. Thank you all for appearing today to
testify in this hearing, which I liken to a dog chasing its tail. I
mean, you know, a dog has got a flea on its tail, or a tick or something, and it gets so exasperated and wound up that it just starts
chasing its tail around. And that is what this hearing kind of reminds me about, because it is not reallythis is not an impeachment hearing, is it, Professor Turley?
Mr. TURLEY. No. It is not an impeachment hearing.
Mr. JOHNSON. Yeah. And there is some obligations that the Judiciary Committee must fulfill in terms of actually instituting an impeachment proceeding against someone. Is not that correct?
Mr. TURLEY. As far as I understand, this is not part of a formal
impeachment procedure.

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Mr. JOHNSON. Yeah. I mean, we have got an obligation to independently investigate the allegations against the accused official in
this Committee if it were an impeachment process. Is that not correct?
Mr. TURLEY. The House is given that responsibility to determine
if there is a basis for impeachment.
Mr. JOHNSON. The Judiciary Committee of the House of Representatives is given that responsibility, is that not correct?
Mr. TURLEY. That is my understanding. Yes.
Mr. JOHNSON. And what due process considerations would we
owe an accused official in a House Judiciary impeachment proceeding? We would have to afford that individual the right to counsel, is that not correct?
Mr. TURLEY. Well, the question of due process is a little tougher
in the sense that
Mr. JOHNSON. My question is just we would have to give that individual the focus of our impeachment inquiry an opportunity to be
represented by counsel, is that not correct?
Mr. TURLEY. I am not too sure, because the Constitution itself
does not specify that you have that right.
Mr. JOHNSON. Well, it has been our custom.
Mr. TURLEY. It has been our custom. We were on opposite sides
in the Porteous impeachment.
Mr. JOHNSON. Yes. And that
Mr. TURLEY. You certainly did afford that opportunity to my client.
Mr. JOHNSON. And it is only correct that we would do that. We
would have the obligation that target a right to opening statement.
Right?
Mr. TURLEY. In the past there has been due process given to the
accused.
Mr. JOHNSON. And we would give the accused the right to crossexamine any witnesses against him or her, is that not correct?
Mr. TURLEY. That is a decision of the Committee. But, in the
past, that has occurred.
Mr. JOHNSON. And that person would have a right to present
their own witnesses in an impeachment proceeding, is that not correct?
Mr. TURLEY. Once again, if the Committee allows it, and it certainly has happened in the past.
Mr. JOHNSON. Well, you could not impeach somebody without
giving them the right to have an attorney, and the right to confront
the witnesses against them through cross examination. Is that not
a fact?
Mr. TURLEY. Well, if you are asking as a constitutional matter
whether you have to give that right to an accused, my answer is
probably no, that the Constitution is not part of
Mr. JOHNSON. Well, I am sure, Professor Turley, that if you were
representing the accused, as you were with the Porteous impeachment process, you would insist on those basic notions of due process.
Mr. TURLEY. I would indeed.
Mr. JOHNSON. I know that you would. And so, what we are doing
here, has no relationship to an impeachment proceeding. We should

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not give the public the false impression that this is about impeachment. This is about the dog chasing its tail.
Now, how long have we been chasing the tail on this case? It was
back in, what, March of 2015well, October of 2015, when the Department of Justice declared that no criminal charges should issue
out of the original investigation. Is that not correct, Professor
Gerhardt?
Mr. GERHARDT. Yes, sir.
Mr. JOHNSON. And, since then, Congress has been chasing its tail
round and round
Mr. FRANKS. Will the gentleman yield?
Mr. JOHNSON. No, I will not. And here we are, while we have had
one mass shooting after another in this country since October of
2015, we have had Congress, instead of holding hearings on what
we can do to protect the public from gun violence, what kind of gun
reform legislation we can even have a hearing on and consider why
would it be that an individual who has been on a Federal terrorism
watch list twice would be in a position of purchasing a firearm no
questions askednot one hearing on that. But here we continue to
chase our tail on the IRS so-called scandal. With that, Mr. Chairman, I will yield back in exasperated frustration.
Mr. GOODLATTE. The Chair recognizes the gentleman from Arizona, Mr. Franks, for 5 minutes.
Mr. FRANKS. Well, thank you, Mr. Chairman. Thank you all for
being here. Mr. McCarthy, if it is all right, I will start out with
you. You state in your written testimony that the framers were
deeply worried that maladministrationincluding overreach, lawlessness, or incompetencecould inflate the constitutionally-limited
executive into an authoritarian rogue, I think is the quote you
used, who undermines our constitutional order.
Professor Gerhardt, on the other hand, he writes in his written
testimony that the founders considered but rejected making certain
high ranking officials impeachable on broader grounds, such as
maladministration. Who do you suggest is right on that point? Did
the Framers consider maladministration an impeachable offense or
not?
Mr. MCCARTHY. Congressman, I will just repeat what I said earlier. The framers considered maladministration and then adopted
high crimes and misdemeanors. Their fear was that a standard like
maladministration could be promiscuous and could be applied to
trifling misconduct, or incompetence. High crimes and misdemeanors was more of a term of art.
They had the example of the Hastings impeachment and Edmund Burkes conduct of it as a fairly fresh example at the time.
So, I believe that is why maladministration was not the term that
they settled on, even though it was the concept they were driving
at.
Mr. FRANKS. Yeah. Professor Turley, do you have any perspective
on that?
Mr. TURLEY. Certainly. Actually, Madison referred later to maladministration, in talking about the standard. There is a difference
between what you use as the formal standard. And there was a
concern of putting maladministration into the language, because it
tended to be too broad. But Madison also talked about incapacity,

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negligence, and perfidy as examples of things upon which you could
be removed. Alexander Hamilton referred to abuse or violation of
the public trust.
The point is that this is a standard that has room at the elbows.
It has room for the House to hold officials accountable for actions
of misconduct. And a lot of the debate over language sort of misses
the primary point. I will give you an example. The idea that gross
negligence cannot be an impeachable offense.
As I state in my written testimony, it depends on how you use
those terms. For example, in the criminal arena, as many of you
are aware, recklessness is viewed as a basis for criminal prosecution. So is deliberate indifference. Those are terms that take what
would be normally a case of gross negligence, but it is criminal in
the sense that it requires a level of action that itself is considered
knowing for the scienter purposes.
So, at some point, the use of these terms outside the context of
impeachment loses their meaning. At the end of the day, Members
have to look at whether what the official did was a betrayal of the
public trust, whether it rose to the level of an impeachable offense.
And so, I do not think you get very far by saying, Well, you cannot
have gross negligence, without looking at what that actually
means in this context.
Mr. FRANKS. I might just follow up on that. You know, treason
and bribery are relatively well-defined terms. But the meaning of
high crimes and misdemeanors, you know, is not defined in the
Constitution or in statute, and it sort of remains somewhat opaque.
But, in keeping with what you just said, in your view, is impeachment limited ultimately to criminal acts, even if it was criminal
negligence?
Mr. TURLEY. No, it is not. And that is something that drives me
to distraction. I testified in the Clinton impeachment hearings. And
I was surprised by some of my colleagues who did not think that
lying under oath would constitute an impeachable offense. So,
there is obviously great variety of views of what that means. I did
not find that a particularly close question. But it does not have to
be an indictable offense.
I think that the whole point of the language, when you hear the
framers talk about violations of the public trust, is it is presumed,
obviously, if a President commits crimes in office that is something
upon which the President can be removed. But, in addition to those
types of crimes, there are violations of the public trust that the
framers expressly stated could be bases for removal.
Mr. FRANKS. Mr. Garvey, do you have a last word on that yourself, related to whether or not it, in your view, is impeachment limited to criminal acts?
Mr. GARVEY. I think, first off, I would say that is a decision that
is committed by the Constitution to the Members of the House, I
think, if you look at history. In practice, however, there are examples in which a criminal act was not required.
Mr. FRANKS. Yeah. Thank you, Mr. Chairman. I thank all of you.
Mr. GOODLATTE. The Chair recognizes the gentleman from New
York, Mr. Jeffries, for 5 minutes.
Mr. JEFFRIES. I thank you, Mr. Chairman. And I want to thank
all the witnesses for your testimony, and for your presence. Mr.

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McCarthy, do you think that impeachment is an ordinary remedy,
or an extraordinary remedy?
Mr. MCCARTHY. It is an extraordinary remedy.
Mr. JEFFRIES. Okay. Now, you wrote a book called Faithless
Execution. Is that correct?
Mr. MCCARTHY. Yes, sir.
Mr. JEFFRIES. And, in that book, you called for the impeachment
of President Barack Obama. Correct?
Mr. MCCARTHY. No, sir.
Mr. JEFFRIES. You did not? Do you think that Barack Obama
should be impeached or should not be impeached?
Mr. MCCARTHY. I believe he has committed impeachable offenses.
I do not believe that there is a public consensus for his removal.
And, as I argue in the book, if you proceed with impeachment when
there is not a public consensus for removal, it is actually counterproductive, because you encourage more lawlessness.
Mr. JEFFRIES. Okay. So, you believe that Barack Obama has
committed impeachable offenses. You also believe, in that book,
that Attorney General Eric Holder committed impeachable offenses, correct?
Mr. MCCARTHY. Yeah. I think that, certainly, what he was held
in contempt for amounted to impeachable offenses.
Mr. JEFFRIES. That was a partisan contempt vote, correct?
Mr. MCCARTHY. I cannot argue to what the vote was. I know that
Congress held him in contempt.
Mr. JEFFRIES. Okay.
Mr. MCCARTHY. I did not get to vote.
Mr. JEFFRIES. You also argued in that book that the Secretary
of State committed impeachable offenses, is that right?
Mr. MCCARTHY. I do. I believe Benghazi, they are profound impeachable offenses, just to take that one transaction.
Mr. JEFFRIES. Okay. By my count, for this extraordinary remedy,
we are at one President, and two Cabinet secretaries. Lets keep
going.
Mr. MCCARTHY. Who I recommended not to impeach because
there is not a public consensus for it.
Mr. JEFFRIES. I understand. The American people are reasonable.
You also argued that the Secretary of Health and Human Services
committed impeachable offense. Is that right?
Mr. MCCARTHY. I do not recall that. I mean, I would have to look
at that. I did argue that the President had overstepped his executive authority by unilaterally amending, or changing statutes, and
that certain subordinates in the executive branch had actually carried out that lawlessness.
Mr. JEFFRIES. Okay. So, at one President, and three Cabinet secretaries, am I leaving anyone else out?
Mr. .MCCARTHY. Man. I seem to think there were a lot more
than that.
Mr. JEFFRIES. Okay. Let us move on to Mr. Turley. I think we
understand the perspective that you are bringing to this objective
hearing. Now, Mr. Turley, in the Constitution, you have got treason, bribery, and other high crimes and misdemeanors as the
standard laid out by the Framers. Is that right?
Mr. TURLEY. That is correct. Yes, sir.

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Mr. JEFFRIES. And that is a high bar, extraordinary remedy. Is
that right?
Mr. TURLEY. Yes. I think it is.
Mr. JEFFRIES. And I think you testified that Congress has a variety of options at its disposal in order to sanction, you know, an official or a judge. Is that right? Beyond impeachment?
Mr. TURLEY. Yes.
Mr. JEFFRIES. And I think you laid out impeachment, contempt,
censure, and fines. Is that right?
Mr. TURLEY. I believe so. Yes.
Mr. JEFFRIES. And, along that spectrum, would you say that impeachment is the most severe remedy available to the Congress to,
you know, express an adversarial position as it relates to the conduct of an official or a judge?
Mr. TURLEY. Yes. But I would say that impeachment is not a
means to express your adverse positions. It is not there for cathartic expression by Congress. But it certainly is the most extreme of
those options.
Mr. JEFFRIES. Right. So, it is not there to really express opposition or vent frustration at an Administration that you disagree
with, notwithstanding the fact they were elected by the American
people, not once but twice in overwhelming Electoral College fashion. It is this extraordinary remedy, with the bar sethigh crimes,
other misdemeanors, treason, bribery. Now, I think obstruction of
justice presumably falls in that spectrum of an impeachable offense. Is that right?
Mr. TURLEY. I think it does. Yes.
Mr. JEFFRIES. Other forms of official corruption fall in that spectrum of an impeachable offense?
Mr. TURLEY. Yes.
Mr. JEFFRIES. Perjury would fall in that spectrum of an impeachable offense. Is that right?
Mr. TURLEY. Yes, sir.
Mr. JEFFRIES. Now, negligence, or incompetence, mistakealong
that spectrum which we are starting with treason and bribery, and
we are winding up working our way through corruption and obstruction of justice, perjurywould you say that this extraordinary
remedy, the most severe one available to the Congress is an appropriate remedy for a mistake, even if that is a mistake that results
in gross administrative negligence from someone who was not even
a Cabinet-level secretary, let alone a President?
Mr. TURLEY. Well, certainly, if you are speaking of simple negligence then my answer is, well, no, it is not an impeachable offence. But this is where we end up on that spectrum, whichand
you are also familiar with the criminal code as we see in many
criminal cases. And it does not have to be a crime, but it is a good
source to look at. There are some forms of negligence that rise to
the level of criminal conduct, recklessness, deliberate indifference.
And so when you look at a negligence question, a lot of my
writings in this area says that it really does get down to the context. Was this reckless action? Was it a deliberate indifference or
something less?

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Mr. JEFFRIES. Right, but there is a difference between manslaughter, criminally negligent homicide and negligence in an administrative context, I think. I yield back.
Mr. GOODLATTE. The Chair thanks the gentleman, recognizes the
gentleman from Ohio, Mr. Jordan, for 5 minutes.
Mr. JORDAN. Thank you, Mr. Chairman. Mr. McCarthy, just to
be clear for the record here, you believe you do not have to show
criminal intent in an impeachment proceeding?
Mr. MCCARTHY. You do not have to show criminal intent.
Mr. JORDAN. The standard is gross negligence, gross negligence,
or breach of public trust, dereliction of duty could be the very appropriate standard?
Mr. MCCARTHY. It certainly takes into account conduct that
threatens the constitutional framework, but is not criminal and
therefore, would not require criminal intent.
Mr. JORDAN. And, Mr. Turley, you would agree with most of that,
based on your testimony? You have talked about reckless, and you
just did that with questions from the last Member.
Mr. TURLEY. Ultimately, you decide as a Member of this body as
to what warrants impeachment and certain forms of gross negligence, in myif you want to use that term
Mr. JORDAN. Yep.
Mr. TURLEY [continuing]. In my view, could become impeachable
offenses if you are talking about recklessness or deliberate indifference.
Mr. JORDAN. Right.
Mr. TURLEY. And that is a matter this body has to weigh very
carefully.
Mr. JORDAN. Okay, Mr. McCarthy, back to you. I am reading
from your written testimony, and you saidit was later, page 14.
Comparing the articles that were actually filed against President
Nixon, you quote thisthe articles read, Had endeavored to use
the Internal Revenue Service to violate the rights of American citizens, they also read that, the President was making false or misleading statements and withholding relevant and material evidence
or information. That was from the articles filed against the President, backagainst President Nixon.
Here is a testimony from Mr. Koskinen. He said, If you told me
that Tom Kane, Chief Deputy Counsel at that Internal Revenue
Service, his Chief Deputy Counsel, said that on February 1st
that he knew on February 1st that there were problems with
Lerners hard drive and they were missing emails.
If you tell me he knew on February 1st, I would henceforth say
that the IRS knew in February. So, just the facts, Mr. Koskinens
IRS Chief Deputy Counsel is on notice of problems with Lerners
hard drive and server lost emails, and Mr. Koskinen waits 4
months to tell us. Would that be withholding relevant information,
material information from our investigation, do you believe?
Mr. MCCARTHY. Where I come from, and again, not having personally investigated this, myself
Mr. JORDAN. Let me frame it this way. You are a former prosecutor. You find out important information. Maybe you did not find
out directly, but one of your other lawyers in your office finds out

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and is working on the case, and you guys wait 4 months to tell the
judge. Would you be in trouble?
Mr. MCCARTHY. No, I can tell you, in nearly 20 years as a prosecutor, you screw up a lot of times. When you make a mistake, you
are obliged to get to the court and correct the record, not to be
called on and to correct it. There may some rhythm involved in the
equation to make sure that you have the facts right when you go
to report it to the court, but if it is a matter of great gravityfor
example, if I had gotten a court to incarcerate someone without
bail on the basis of facts that I find out not to be true, my obligation, no matter how silly it makes me look, is to get to the judge
and correct the record.
Mr. JORDAN. Correct the record?
Mr. MCCARTHY. Right.
Mr. JORDAN. All right. Four months. It is also interesting, in that
4-month timeframe, that is actually the time when they destroyed
the backup tape. So they knew they were in trouble with the main
computer that had the emails, and they did not tell us for 4
months, but in that interval they also destroyed the backup tapes
that would have given us information. And they did that with three
preservation orders and two subpoenas in place.
I also like what you said here from the article, Endeavor to use
the IRS to violate the rights of American citizens. Now, it is interesting that you use the word endeavor. Because in this case that
we are talking about, they did not endeavor, they did it. Four hundred and twenty-six groups were targeted systematically and for a
sustained period of time by the Internal Revenue Service.
I always remind folks, never forget the underlying offense here.
The IRS targeted people for their political beliefs. They got caught.
Ms. Lerner lied about it when she first went public May 10, 2013
and said, It was not us, it was folks in Cincinnati.
Then she comes in front of the Oversight Committee, sits right
where you are sitting and takes the Fifth Amendment. When you
have that fact pattern, it puts a premium on the documents, the
evidence, the material, the emails and they waited to tell us that
they had problems, and then they destroyed the backup tapes that
contained the information we needed for our investigation. Ridiculous.
Let me ask you this here. Mr. Gerhardt said this should be a last
resort. The House has voted to reduce the IRS budget, the Treasurys budget. We have called for the resignation of Mr. Koskinen,
we have voted for a special prosecutor to look into this, we voted
last week in the Oversight Committee to censure. Last resort, we
are there.
There is nothing we can do to reassert, as Mr. Turley said, the
rights of the legislative branch which have been trampled on by
this executive branch. So, I would just say this, Mr. Chairman. You
do not have to show bad intent, criminal intent. Legislative Branch
rights have been trampledand Mr. Turley pointed a great fact.
Judicial Watch can get more information on the IRS targeting
scandal, on Benghazi, on the Clinton email, on anything that is
going, they get more information than Congress gets.
The underlying offense here was the most egregious thing you
can dogoing after peoples political free speech rights, the right

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to speak in a political fashion. And John Koskinen, as head of the
agency, brought in to clean it up, in the Presidents word, and restore confidence, in the Presidents word, allowed 422 backup tapes
to be destroyed with three preservation orders and two subpoenas
in place. If that does not warrant, all that does not warrant us taking this action, I do not know what does. With that, I would yield
back.
Mr. GOODLATTE. The Chair thanks the gentleman and recognizes
the gentleman from Utah, Mr. Chaffetz, for 5 minutes.
Mr. CHAFFETZ. Mr. Chairman, thank you, and thank you sincerely for holding this hearing. But I got to tell you, the frustration
it is very frustrating. But lets remember why we are here. We are
here because he had two duly-issued subpoenas to the Commissioner of the IRS, and they did not fulfill those subpoenas. In fact,
they destroyed that evidence.
The IRS, which issues on average 66,000 subpoenas and summons a year, they know how to dish it out, but they do not know
how to take it. Imagine if you came back to the IRS and said, I
had those documents, but you know what? I went ahead and destroyed them. Do you think that you would go to court or not go
to court? Would you be in jail or not be in jail? We are talking
about removing somebody from office.
The duplicity and inconsistency from Mr. Nadler is stunning. He
complains about censure and yet he cosponsors resolutions of censorship on George W. Bush, he does censures on Mr. Cheney, but
heaven forbid we get rid of somebody who lied to Congress. When
you provide false testimony to Congress, is that or is that not a
crime? Is that or is that not against the law? Does anyone of you
think that providing false testimony to Congress is not against the
law?
Mr. MCCARTHY. It really depends on whether it is intentionally
false, if you are talking about the criminal law.
Mr. CHAFFETZ. But it does not rise to that level, does it? In terms
of, if you provide false testimony to Congress, is that an impeachable offense?
Mr. MCCARTHY. I would say that in the Senate Judiciary proceedings, with respect to Attorney General Gonzales, the senior
Members of the Committee of both parties said that the issue was
that the Committee had lost confidence in the ability of the Attorney General.
Mr. CHAFFETZ. So, let me read. Let me read a couple things Mr.
Nadler cited in the 1974. He cited as the leading authority on this.
This is from the 1974 Judiciary Committee Report, Impeachment
in criminal law serve fundamentally different purposes. Impeachment is the first step in the remedial process, removal from office
and possible disqualification from holding future office. The purpose of impeachment is not personal punishment. This goes from
the conclusion.
The emphasis has been on the significant effects of the conduct,
undermining the integrity of the office, disregard of constitutional
duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government.
Clearly, these effects can be brought about in a way not intended
by the criminal law. And the other one I would highlight is Mr.

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Madison. James Madison of Virginia argued in favor of impeachment, stating that some provision was indispensable to defend
the community against the incapacity, negligence, or perfidy of the
chief magistrate.
So, the reason that we are here is because we had two dulyissued subpoenas that were not abided by; in fact, they destroyed
the evidence under his watch, and then provided false statements
to the United States Congress. Do not pretend that this is just
some accident that happened over on the side, and certainly I think
that Mr. Koskinen had a duty and obligation to inform the Congress when he do because, what did he do? They informed the
White House, they informed the Department of Treasury, but they
did not inform the Congress. And I have a problem with that.
Now, Mr. Gerhardt, you argued that the CRS report would say
that Mr. Koskinen maybe does not rise to the level of somebody
who is impeachable. Do you believe or not believe that the Commissioner of the IRS does qualify as a civil officer?
Mr. GERHARDT. I am sorry, I am not sure I understood the first
part, what you said, but I think he has enough responsibility, as
I said in my opening statement. I think he exercises a substantial
enough authority where he qualifies as a
Mr. CHAFFETZ. Does anybody believe that the Commissioner of
the IRS is not of a significant high enough level to be qualified for
impeachment? Very good. Let me also highlight something about
this range of offenses. Mr. Gerhardt, in 1999, you wrote a law review article that seems to be in direct contradiction to what you
said here today. Today, your testimony is, Indeed, the Founders
considered, but rejected making certain high ranking officials impeachable on broad ground such as maladministration.
But in 1999 you wrote, Mason therefore withdrew his motion
and substituted other high crimes and misdemeanors against the
state, which Mason apparently understood as including maladministration. So, which one was right? Were you wrong in 1999, or are
you wrong today?
Mr. GERHARDT. I am describing George Mason in the one you
just quoted from that in fact, what he understood, it was not necessarily attributable to the entire body. In fact, they adopted the
phrase at the convention. They specifically adopted the phrase,
high crimes or misdemeanors to distinguish it from maladministration, so, number one.
Number two, over time, I think other crimes or misdemeanors
have grown to be understood as requiring both bad faith and a bad
act.
Mr. CHAFFETZ. And clearly, Mr. Chairman, I think there were
more than just that. Providing false testimony, not complying with
the subpoena, in fact, destroyingthat is destruction of evidence
does qualify, in my opinion. Yield back.
Mr. GOODLATTE. The Chair thanks the gentleman and recognizes
the gentleman from Florida, Mr. DeSantis, for 5 minutes.
Mr. DESANTIS. Thank you, Mr. Chairman. Thanks to the witnesses. I appreciate everyones testimony. I have heard, just as we
have gotten into this from some of the colleagues on the other side,
that Congress just cannot handle an impeachment, take a year and
all this. It is a 1-day case. We will present the case in 1 day. The

102
facts are really the facts. There are subpoenas issued, the tapes
were destroyed, the emails were destroyed, there were statements
made that are demonstrably false, there was a lack of effort on the
IRS to even look for in obvious places. So either you are good with
that or you are not.
So, I think that this idea, this is going to take, it is like climbing
Mount Everest to simply put on this case, it is just not true. We
absolutely could do it, and I think we need to do it.
High crimes and misdemeanorsin your book, Mr. McCarthy,
you talked about some of the historical understandings of this, and
when the Framers were devising the high crimes and misdemeanors provision, the biggest example was India, the Governor
of India who had been impeached, Hastings.
Mr. MCCARTHY. Right.
Mr. DESANTIS. And they specifically looked at whether you needed criminal intent, and I notice in the debates they said, well, no,
you cannot say you can only have treason or crime because
Hastings was not necessarily guilty of that. He was more guilty of
breaching his duties that he owed to the crown, correct?
Mr. MCCARTHY. Yeah, I think it is very clear that a criminal offense is not required. I also think it is worth pointing out that the
Constitution explicitly provides that somebody who has been impeached is still subject to trial. So, the Framers obviously understood that this was not the analogue of a criminal proceeding because if it were, you would raise profound double jeopardy questions if you were to prosecute somebody afterwards.
It is pretty clear from the way the Constitution is laid out and
from the arguments that were made at the time that it was adopted that this is not required a criminal trial in the procedural sense
and it does not call for a criminal offense in the substantive sense.
Mr. DESANTIS. And I liked your reference, and I am a Navy guy,
so dereliction of duty and conduct unbecoming an officer and a gentleman; those are actionable offenses under the Uniform Code of
Military Justice. Now, those are criminal under the Uniform Code
of Military Justice. They would not be considered criminal, necessarily, those acts in civilian society, but that provides an interesting analogue that if you are just so grossly negligent, you are
not doing any of your duties, that there is a mechanism to be able
to hold you accountable.
So, you agree that if somebody is just grossly negligent, if their
conduct is just simply not becoming an officer, that that could potentially be actionable for an impeachment?
Mr. MCCARTHY. I think it could potentially be, but I also think
the ingredients involved here are the nature of the wrong, how
much does it threaten our constitutional framework, the culpability
of the actor, and the necessity that Congress check the executive
branch? And I think the difficulty in fixing apodictically on a standard is that that is situational. It will be different from instance to
instance.
Mr. DESANTIS. And we sometimes will hear, Well, Congress has
not done this in a long time. Would you agree that right now Congress power is really at its historical nadir in terms of the how the
Founders conceived of the legislative branch?

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Mr. MCCARTHY. Yeah, Madison thought impeachment was indispensable. The Framers expected it would be used more than it has
been, and perhaps the reason that Congress is at this low ebb is
precisely because it has not been used when it should have been.
Mr. DESANTIS. Or use the power of the purse. I mean there are
certain tools that Congress has and they have given a lot of power
to the bureaucracy over the years. So, here we are, and I appreciated Professor Turley, we send a subpoena and it is like nobody
even cares about it. They did not need to follow any of this stuff.
They made a decision that going in that direction, there would be
no consequences. The contempt, no consequences.
And I just think if we keep allowing that, I think that we are
inviting the executive branch to continue to trample over Congress
powers.
I think in this case, clearly, this is an example of checking the
executive branch, because the underlying conduct was very serious.
It struck at the heart of who we are as a country and our freedoms.
And whatever you think of that, because I know there will be disagreements on the other side, clearly, Congress had the right to get
this information and to conduct proper oversight over the executive
branch. And this Commissioner, under his tutelage, the agency has
thwarted our efforts at every step of the way.
I shudder to think what would happen to a taxpayer, a business
owner who was audited, the IRS issues a summons for documents,
and the response 2 months later is, Well, we destroyed the documents. Sorry. The IRS would not accept that. You would face consequences.
Indeed, that is one of the cardinal sins with tax compliance, is
to simply destroy documents that were under subpoena or under a
summons. And so, I am glad we are having this hearing. I appreciate the range of views, and I yield back the balance of my time.
Mr. GOODLATTE. The Chair thanks the gentleman, recognizes the
gentleman from Georgia, Mr. Collins, for 5 minutes.
Mr. COLLINS. Thank you, Mr. Chairman. I think the interesting,
you know, comment, because I personally believe I now served with
others on the Oversight Committee and I have actually questioned
the commissioner on many occasions. I have found sometimes, basically, getting more fruitful answers from the wall than I did from
him, because he would basically just not answer questions. He
would tell one story then you find out, you know, just a few days
later it was not the right story then come back.
I think the groundwork has been laid by many of the questions
of my, you know, fellow congressmen here, and well, that this is
an issue that should be brought forward.
Mr. Turley, I want to go back to you and we have talked about
this some, and Mr. McCarthy. I have heard the terms thrown
around today, paper tiger, Congress has lost its authority. Lets
deal with this. And it just came out, I think, Mr. McCarthy, you
just said, We probably should be using this more, the impeachment process.
I just want both of you to address that for a moment because we
do have the power of the purse, you know, in the issues that we
have now we are divided, I believe this Administration has played
to the weakness, if there is, in the constitutional system. When you

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had a Congress that has trouble passing issues, they have played
right into that and they have exploited it, in a way. Is impeachment the best way for us to go about that in holding some of this
accountable, and I will take from either one of you.
Mr. TURLEY. Well, my preference in these types of cases is first
to start with contempt, and part of my testimony highlights the
fact that this body used to exercise contempt authority, actual enforcement, directly, as a body and it agreed with the Department
of Justice to the statutory process.
Mr. COLLINS. That is great you brought it up, and I want to talk
about that. Here is another issue, though. When we have a Department of Justice that is being politically motivated and driven to not
follow evidencetake that step, as well. We can hold in contempt,
and we have done that, but yet we cannot get them to take up the
case. Is there maybe another way that we can go about that, or tie
it directly to the Department of Justice for not following the contempt orders that are issued for Congress?
Mr. TURLEY. Well, actually, for years I have testified in front of
this Committee suggesting that you reexamine the deal you struck
with the Department of Justice. I think the Justice Department is
in clear flagrant violation of what it promised this body. It promised to be a neutral agent to take contempt referrals from this
body. In 1982, it refused to submit Burford; 1982 again, refused to
submit Bolton; 2008, refused to submit Meyers; 2012, refused to
submit Holder or do a Grand Jury proceeding.
It was an agreement with this body, when you went to the statutory process that they would be an honest broker and they have not
been when the person accused is a member of the Administration.
So, in my testimony I say it is really long overdue for the House
to look at some of its original authority, the deal it struck; also to
look at alternatives including fines, including financial penalties,
which actually can be meted out for people who are censored or
held in contempt.
In terms of impeachment, yes, it is an extraordinary remedy, but
we are living in extraordinary times, that if you believe that the
IRS Commissioner knowingly lied to this Committee, if you believe
that there was obstruction of this Committee, I do not know of anyone who does not believe that can be an impeachable offense. It
rests with your judgment as to the culpability of his actions.
But the problem is that this institution has allowed its powers
to atrophy. And as a result, you have rational actors in the executive branch, and they balance detection against penalty, and if they
see no penalty, they are going to conclude as rational actors that
there is very little reason to cooperate with Congress when it could
bear costs when not cooperating with Congress bears no costs.
Mr. COLLINS. Mr. McCarthy, you agree?
Mr. MCCARTHY. Yeah, I would just say that to my mind, the
focus on contempt gets further away from what the purpose of impeachment was. The emphasis here is not on the venality of the
actor; it is on the damage to the governing structure.
And if you have somebody who is abusing his authority in a way
that threatens the governing structure, the public interest is in removing the power from the person. Whether that person is personally sanctioned in the judicial system or otherwise is a very inter-

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esting question and a very important question, but it is beside the
point of what this is about, which is protecting our governing
framework.
Mr. COLLINS. And I think that is the part right there for all of
us who, especially in the House, who as all of you said, is closest
to people, we have to stand, not just coming off of election; we answer to our constituents on a smaller level as far as the Federal
Government goes, and this is the part they do not understand.
They do not understand how an executive branch makes that cost
analysis decision, you know, penalty and gain. They do not understand it because they do not get it in their own workplaces.
If they do not do their job, if they do not follow through, if they
do not getif they do not follow even the IRS, which is the most
egregious example, if they do not do what the IRS asks, they get
put in jail, they get sanctioned. This is the part that concerns me.
Atrophied muscles hurt when you start to exercise them. And I
think there will be pain as we begin this process, but if Congress
does not start looking for ways, then I agree with your paper tiger
comment, but I am not willing to be a paper tiger. I think this Congress has to do this and this is the perfect example, because if you
have watched any of the hearings in OGR, in which I was a part
of, and which the Chairman has continued and that other Members
here have continued, this is an outrage. This man needs to go.
With that, I yield back.
Mr. GOODLATTE. The Chair thanks the gentleman, recognizes the
gentleman from South Carolina, Mr. Gowdy, for 5 minutes.
Mr. GOWDY. Thank you, Mr. Chairman. Professor Turley, when
I see Chairman Chaffetz in his periwinkle trial suit, it gets me
thinking a little bit towards, what if it actually went to trial? What
would the mechanics of that trial be?
So, I am going to ask you a series of questions in hopes that you
will give me more of a deposition answer than a law professor answer so I could get through all of the questions. What is the burden
of proof? By what standard of proof does the House have to prove
the allegations?
Mr. TURLEY. First of all, I like the suit.
Mr. GOWDY. The suit is an impeachable offense.
Mr. TURLEY. In terms of the standard, the standard is left to you.
That is, it is not beyond a reasonable doubt. It is not a criminal
proceeding. Members have to apply their own judgment as to
whether there is sufficient evidence to support sending it to the
Senate, and those two proceedings obviously have different sort of
dynamics.
Your role is closer to a grand jury, in my view. You determine
whether this is a matter for which this person should stand trial
in the Senate. That means that you do not do necessarily as an exhaustive a job as a Senate trial would be. You have to do enough
to satisfy yourself that this warrants an impeachment that should
be before the Senate.
Mr. GOWDY. But then we have to walk across the Capitol to the
jury, and we have to prove it. And maybe I am just a prisoner of
my background. I am trying to figure out, is it preponderance; is
it clear and convincing evidence; is it see if we can keep the Sen-

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ators awake during the proceeding? What is the standard by which
we have to prove whatever the allegation is?
Mr. TURLEY. Well, I think if you look at past trials, it probably
comes closest in practicality to preponderance. As we tried the
Porteous case together, on opposite sides, thewe often objected to
the level of evidence against Judge Porteous, but we also acknowledged that the Senators had to make their own judgment as to
whether the evidence was sufficient. If I was to peg which standard
comes closest, I would probably say, historically, preponderance has
come closest.
Mr. GOWDY. Do the rules of evidence apply? In other words, can
I call a single witness who then uses hearsay to import, like, the
Inspector General? Can I call the Inspector General and just use
him to get all of the other evidence in, or do the rules of evidence
apply?
Mr. TURLEY. Well, I am only laughing because the Chairman and
I, remember, we had some heated moments late at night, around
12 at night, about witnesses and the rules of evidence. Technically,
the rules of evidence do not apply. The rules that apply are the
rules adopted by the Senate for those proceedings.
But I should also say, is we argued in the Porteous case that
wethe Senate has tried to maintain those proceedings as close to
the rules of evidence as possible. So as we tried that case, I would
make evidentiary objections as I would in a Federal case, understanding that the Senators could override those determinations.
Mr. GOWDY. And I guess it is theoretically possible that the Senate could say, Yes, there was a breach of duty or an offense was
committed, but the punishment is not the punishment you are
seeking. I guess they are both the finder of the fact and the ultimate censurer?
Mr. TURLEY. Yes, I mean, the Senators can decide that this does
not warrant removal, and that is, of course, a different question
from whether they believe the underlying conduct occurred.
Mr. GOWDY. Every now and again, senators will express their
opinion on matters even before the trial has begun. I assume there
is no remedy for removing jurors who have already expressed
their
Mr. TURLEY. No, I can say, with all due respect to the senator,
it was the most difficult jury I ever appeared in front of. The fact
is that senators are their own counsel as to the degree to which
they speak to this.
And during the Clinton impeachment, we did have senators who,
after signing the book and the initial entrance to remain neutral,
actually went out and said they will not vote for impeachment before the trial started. That was not viewed as a violation, even
though some Members did raise concerns about that.
Mr. GOWDY. All right. Last, kind of, nuts and bolts question
prosecutors have a tendency to think in terms of what defenses we
may run into. The defense of some hybrid of selective prosecution
that you are singling me out, even though other Administration officials have done exactly the same thing. I assume the Senate can
factor that in if they want to, but you are not getting a jury instruction on selective prosecution, but if they want to use that as
an argument, they could do so?

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Mr. TURLEY. And in fact, was one of the arguments we raised in
the Porteous trial before the Senate, is that his conduct was not
easily distinguishable from other judges or even Members of Congress in some cases. But that was something to factor in. Obviously, the Senators did not find that persuasive.
Mr. GOWDY. My time is out. Mr. Chairman, I did want to ask,
because I thought Jimmy asked a really, really good question
which Professor Gerhardtthis incremental approach or the remedy of last resort. Walk me through what that incremental approach would look like. If it is the last resort, that necessarily
means that we should try something before then. What have we
not tried that we should try?
Mr. GERHARDT. Well, congressman, we have covered some of
these, contempt and other possibilities. The other, frankly, is that
this is an official who works within a hierarchy, and there are people within that hierarchy who obviously have, in some respects, supervisory authority. We have had other IRS Commissioners, for example, forced to resign if they have done something sort of inappropriate, so that is an option.
So, within the political circumstances in which this person functions, there are options. So, that is one of the challenges, I suppose,
of dealing with a sub-Cabinet Official. Sub-Cabinet Official is, by
definition, operating within a hierarchy. So the question becomes,
to what extent can that official be held accountable within that hierarchy?
Mr. GOWDY. Thank you, Mr. Chairman.
Mr. GOODLATTE. If the gentleman would yield. He failed
Mr. GOWDY. Well, of course.
Mr. GOODLATTE [continuing]. He failed to ask Mr. Turley, who
was the prevailing party in the impeachment
Mr. GOWDY. I just assumed anytime you went up against Professor Turley, we all knew you won.
Mr. TURLEY. Thank you for
Mr. GOWDY. But that is all wrong.
Mr. TURLEY. It escapes my memory at the moment, Mr. Chairman.
Mr. GOODLATTE. The gentleman from Utah.
Mr. CHAFFETZ. I thank the Chairman. I would like to just note
for the record that the Oversight Government Reform Committee
took a
Mr. GOODLATTE. The gentleman would state his request.
Mr. CHAFFETZ. I ask unanimous consent to ask 5 minutes worth
of questions.
Mr. GOODLATTE. Since I went over, Mr. Gowdy went over, I am
not going to do a second round of questions, but I will be happy
to recognize you for some brief additional questions, so keep it
under that, that would be good, and I will do the same for the gentleman from Ohio.
Mr. CHAFFETZ. Will do. I thank the Chairman. I would note that
the Oversight Government Reform Committee had the question
about who would qualify as a civil officer. Counsel for the House
came back and said that anybodythe standard should be they
thought the most defensible would be somebody that was confirmed
by the United States Senate. I was wondering if anybody would

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disagree with that counsel we got, if there would be a different
standard, but their definition of civil officer, most defensible was
somebody confirmed by the United States Senate.
Mr. TURLEY. I have to say that that is the most logical line to
draw. I am not entirely sure that I would say that is the exclusive
measure of whether someone is impeachable. I can imagine a person who is not subject to confirmation having a very high position
in the government, and indeed, I think part of the problem with
those who say, Look, this is unprecedented, you cannot go below
the Cabinet, is it ignores the modern regulatory state.
You know, in the case of the commissioner, this is someone who
has authority over 90,000 employees collecting $2.5 trillion from almost 250 million citizens. To suggest that that would not amount
to a person subject to impeachment I think is facially ridiculous.
But I could also imagine in our current regulatory state somebody
who is not in a confirmable position who exercises that degree of
authority.
Mr. CHAFFETZ. The other question I would say is, do you believe
that providing false information to Congress is an impeachable offense?
Mr. TURLEY. From my point, standpoint, absolutely.
Mr. MCCARTHY. I do not think there is any question. It is.
Mr. GERHARDT. Of course, providing false testimony would be,
but for me, it is not just the bad act. It would have to be the purposeful engagement in bad faith.
Mr. CHAFFETZ. Mr. Garvey?
Mr. GARVEY. Yeah, I would just point out that Judge Porteous
was impeached and convicted for providing false statements to
Congress. That was Article IV of his articles of impeachment.
Mr. CHAFFETZ. I thank you. And just finally, Mr. Chairman, I
just ask you now to consent to enter into the record this Washington Post piece by George Will, October 7, 2015, Impeach the IRS
Director.
Mr. GOODLATTE. Without objection, it will be made a part of the
record.
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Mr. GOODLATTE. The gentleman from Ohio, for what purpose
Mr. JORDAN. I thank the Chairman for to ask this short second
I want to make a couple points.
Mr. GOODLATTE. The gentleman is recognized.
Mr. JORDAN. I was going right where Chairman Chaffetz was at
with this idea of the low Cabinet level. Mr. Turley, you are right,
it does ignore the modern regulatory state, and we are not just
talking about any old agency. This is probably the one agency that
the American people have to deal with more than any other. This
is the Internal Revenue Service. So, yeah, I think that just misses
the fundamental fact of the world we live in today.
I just want to finish with this and maybe ask Mr. McCarthy
I cannot remember which of you on the panel said thisbut I think
they said there were three basic elementsthe gravity of the offense, the culpability of the person that we are looking into, and
then the duty of Congress. When you look at those three elements,
the gravity of the offense, I always come back to this. They went
after peoples First Amendment, free speech, political speech, politicalwhen the Founders put together the First Amendment, I
think they were mostly focused on your ability to speak in a political nature, and not be harassed and targeted for doing so. That
was the underlying offense.
Then we have Mr. Koskinen who allows documents to be destroyed and gives false and misleading testimony to the Congress.
So, when I think about the gravity of both of those offenses, the
culpabilityallowed documents to be destroyed that were central
to the investigationwould you, Mr. Turley and Mr. McCarthy,
think those two elements then warrant the action we are seeking
to take?
Mr. TURLEY. Well, what I would suggest is that first of all, the
underlying allegation created a legitimate investigation for this
Committee. If you are suggesting that the IRS was effectively
weaponized against political opponents; that is an exceptionally
dangerous type of precedent. Even President Obama acknowledged
that. Did this Committee have absolute right to the documents that
it sought? Clearly. Was the refusal of those documents to the Committee a basis to investigate for obstruction? Clearly.
If this Committee believes that a witness came in and lied to it
and obstructed its investigation, then those have the gravity required for impeachment. It turns a lot on what you believe to be
the nature of his actions. Was it just simple negligence, or was it
intentional, or was it an act of willful blindness or deliberate indifference? All of those are
Mr. JORDAN. Sure, it sure seems willful, anywayit is 4 months
to tell us that they cannot get us the information we ask for and
that was under subpoena.
Mr. TURLEY. Well, that certainly helps the House because nothing concentrates the mind so much as a subpoena. And normally,
you do not get a sort of passive-aggressive response. You have to
comply with the subpoena.
Mr. JORDAN. Mr. McCarthy?
Mr. MCCARTHY. Yeah, I would just say that the third element
plays in here, and that is that you have an obligation, constitutionally. Because, really, nobody else can. To check executive abuse

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of power, overreach. And if you allow a situation where an agency
like the IRS is weaponized against political opponents of the Administration, and you allow a situation where when you ask for relevant information that you are entitled to have from the executive
branch, they either provide you with false information or they obstruct justice, you either have to act or you are basically greenlighting that conduct.
You know, people like me in the peanut gallery can rant and
rave and do whatever. But we are not in a position to be a counterweight to the executive branch. It is a great power that Congress
has, but it is also a profound responsibility because what hangs in
the balance is whether our framework of government works.
Mr. JORDAN. Well said. I am going to thank the panel, and thank
you, Mr. Chairman.
Mr. GOODLATTE. The Chair thanks the gentleman, and Mr. Garvey, I had asked you about instances of censure of sub-Cabinet
level employees of the executive branch, and I want to ask a unanimous consent to submit for the record two instances that my research has found: one, of Assistant Secretary of the Army, Sara E.
Lister in 1998, and the second, earlier, the Ambassador Thomas F.
Bayard in 1896. So, we will submit the documentation regarding
those censures.
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Mr. GOODLATTE. And this has been a very good hearing, and I
thank all of the witnesses for their contribution to it. I thank the
Members of the Committee for their participation as well, and
without objection all Members will have 5 legislative days to submit additional written questions for the witnesses, which we would
ask that you answer promptly and without the necessity of a subpoena, or additional materials for the record.
And with that, this hearing is adjourned.
[Whereupon, at 12:15 p.m., the Committee adjourned subject to
the call of the Chair.]